IN RE: ELIGIBILITY OF THERESA VIDAL, EDDIE ALATORRE and JOSE PEREZ, Local Union 396.
Protest Decision 2011 ESD 88
Issued: January 27, 2011
OES Case No. E-018-011011-FW
Ron Herrera, secretary-treasurer of Local Union 396, timely filed an eligibility protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Theresa Vidal, Eddie Alatorre and Jose Perez are ineligible for election as delegates and/or alternate delegates to the 2011 IBT Convention.
Election Supervisor representative Kathryn A. Naylor investigated this protest.
Findings of Fact and Analysis
Article VI, Section 1(a) of the Rules provides that "to be eligible to run for any Convention delegate, alternate delegate or International Officer position, one must: (1) be a member in continuous good standing of the Local Union, with one's dues paid to the Local Union for a period of twenty-four (24) consecutive months prior to the month of nomination for said position with no interruptions in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments; (2) be employed at the craft within the jurisdiction of the Local Union for a period of twenty-four (24) consecutive months prior to the month of nomination; and (3) be eligible to hold office if elected.
Local Union 396 held its nominations meeting on January 8, 2011. Accordingly, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from January 2009 through December 2010.
1. Theresa Vidal - Ineligible
Vidal paid dues by check-off authorization with her employer. She commenced a workers' compensation leave in May 2010 that continued into October. TITAN records show a withdrawal card issued on June 10, 2010 and was deposited on October 12. Although her TITAN shows a check-off remittance for June 2010, there were no check-off or cash dues payments recorded for July, August and September. Vidal confirmed that she was on withdrawal for this period. She stated she was unaware that it was her responsibility to pay her dues under such circumstances. Payment of dues did not resume until Vidal returned to work in October. These facts show an interruption in her continuous good standing. Accordingly, we find Vidal INELIGIBLE for nomination as delegate.
2. Eddie Alatorre - Eligible
TITAN records for Alatorre show he had timely check-off remittances from his employer for the 24 months in question, with the exception of March 2009. His TITAN shows no check-off or cash payment for March 2009. Alatorre explained and submitted documentation that verified that he took paid vacation and/or sick leave under the Family Medical Leave Act (FMLA) for the period March 9 through 20, 2009, related to the birth of his child. His net earnings for that month were well in excess of his monthly dues obligation of $74. Alatorre's pay stub for this paid leave also confirmed that his employer did not deduct dues from his March 2009 earnings. However, it is well established that a member on dues check-off retains his good standing even if his dues were remitted late or not at all, provided he had signed a check-off authorization and had sufficient earnings or paid leave in the month from which dues could have been deducted. IBT Constitution, Article X, Section 5(c); Eligibility of John Gerow, et al., 2006 ESD 121 (March 2, 2006).
Alatorre's TITAN records also show an honorable withdrawal card was issued and deposited on April 10, 2009. Despite that withdrawal card, the TITAN also shows a timely check-off remittance from his employer for full dues for that month. Alatorre did not lose his good standing as a result of the withdrawal card that was issued and deposited in the same month since he had sufficient earnings to fund his dues obligations through check-off. Eligibility of Greishop, 2006 ESD 139 (March 13, 2006). Accordingly, we find Alatorre is ELIGIBLE to be nominated for delegate.
3. Jose Perez - Eligible
TITAN records for Perez show he was suspended on March 2, 2009 and returned to active status in July 2009. There were no check-off or cash dues payments recorded for the period January through June 2009, nor for September 2009. Four check-off remittances were recorded in July 2009; these were applied to back dues for December 2008 and February through April 2009. Also, a withdrawal card was issued and deposited on October 8, 2009. His TITAN reflects timely check-off remittances for the balance of the relevant 24-month period ending in December 2010.
Perez confirmed that he was suspended from work in late 2008; however, he maintains that his suspension ended in December 2008. Perez explained that he returned to work on December 30, 2008, and worked continuously from that date through July 2010. Payroll records confirm that he received holiday pay for New Year's Eve on December 31, 2008, and that he worked from January through June 2009. The records reflect net earnings in excess of his monthly dues obligation in each of those months.
Payroll records also confirm that Perez had net earnings for the last week in September 2009 that far exceeded his dues obligation for that month. Consistent with the check-off rule noted above, the failure of his employer to deduct and remit dues for January through June 2009, and September 2009, will not affect Perez's continuous good standing where he was on check-off authorization and had sufficient earnings in each month to fund his dues obligation. Accordingly, we find that Perez is ELIGIBLE to be nominated for alternate delegate.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 88
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Ron Herrera
IBT Local Union 396
880 Oak Park Road, #200
Covina, CA 91724
ronherrera396@aol.com
Richard Galvan
1208 E Dalton Avenue
Glendora, CA 91741
patg_0706@yahoo.com
Theresa Vidal
4926 Liverpool
Yorba Linda, CA 92886
tcvkerum@aol.com
Eddie Alatorre
11734 Merit Lane
Whittier, CA 90601
patg_0706@yahoo.com
Jose Perez
10965 Memory
Mission Hills, CA 91345-1525
tonyandjulia1991@msn.com
Michael Miller
P.O. Box 25385
Los Angeles, CA 90025
miller.michael.j@verizon.net
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com